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Punjab-Haryana High Court

Jaswinder Singh And Ors. vs Kartar Singh And Ors. on 7 January, 2004

Equivalent citations: AIR 2005 P H 19, (2004) 138 PLR 633

Author: J Khehar

Bench: J Khehar

JUDGMENT
J.S. Khehar, J.

1. The controversy in hands is in respect of the property of Bagga Singh. Bagga Singh died on 28.12.1977. Bagga Singh had two sons Kartar Singh and Phuman Singh and three daughters Kartar Kaur, Basant Kaur and Pritam Kaur. Through his first will dated 22.8.1958 (which was duly registered), he bequeathed his property to his sons Kartar Singh and Phuman Singh in equal shares.

2. Kartar Singh had two sons Nachhattar Singh and Mohinder Singh. Whereas, Phuman Singh had three sons and two daughters. His three sons were Prem Singh, Jaswinder Singh, and Paramjit Singh, whereas, his two daughters were Jasbir Kaur and Parminder Kaur. By a subsequent will dated 25.10.1971, which was notarised on 26.10.1971, Bagga Singh ignored his children Kartar Singh and Phuman Singh. He, however, be queathed his property to the three sons of Phuman Singh in equal shares. In other words, by the Will dated 25.10.1971, the property of Bagga Singh was to pass on to Prem Singh, Jaswinder Singh and Paramjit Singh in equal shares.

3. During the life time of Bagga Singh, Prem Singh one of the beneficiaries from the will dated 25.10.1971 died. Bagga Singh then executed a codicil dated 19.6.1976, whereby, the property falling to the share of Prem Singh (in the will executed on 25.10.1971) was bequeathed in favour of the legal heirs of his deceased grandsons Prem Sigh, namely, to his widow Harbhajan Kaur, and to his three sons Inder Mohan Singh, Harjinder Singh and Balwinder Singh in equal shares.

4. On 17.7.1979, Kartar Singh son of Bagga Singh filed a civil suit claiming separate possession by way of partition of half share in the properties of his deceased father Bagga Singh. This claim was made by asserting that the plaintiff, Kartar Singh (son of Bagga Singh), defendant no.l, Phuman Singh (brother of the plaintiff), and Bagga Singh (father of Kartar Singh and Phuman Singh), constituted a Joint Hindu Family, of which Bagga Singh was the Karta. On the basis of the assertion that the suit property comprised of their Joint Hindu Family Property, Kartar Singh demanded half share in the said property after the death of Bagga Singh. It was also alleged in the suit filed by Kartar Singh, that Bagga Singh during his last days had lost his senses on account of his ad- vanced age, whereupon, the defendants including Phuman Singh, Jasbir Kaur and Parminder Kaur (sons and daughters of Phuman Singh) and Harbhajan Kaur, Inder Mo- han Singh, Balwinder Singh and Harjinder Singh (legal heirs of Prem Singh, the de- ceased son of Phuman Singh), had misappropriated the funds of the Joint Hindu Famify without legal necessity and need of the family. He, therefore, demanded partition of the Joint Hindu Family property and a separate share therein.

5. In response to the aforesaid civil suit, the defendants, interalia pleaded that the property in question was not Joint Hindu Family property as alleged. In fact it was asserted that the property in question was the self acquired property of Bagga Singh. De- fendants No. 2 to 12 (i.e. all the defendants other than Phuman Singh son of Bagga Singh), claimed title to the suit property on the basis of the second will executed by Bagga Singh on 25.10.1971, read with the codicil dated 19.6.1976.

6. The plaintiff Kartar Singh did not file any replication to the written statement filed by the defendants.

7. Two amended plaints came to be filed by Kartar Singh. The last amended plaint (verified on 29.5.1981) is relevant. Through the said amendment, Kartar Singh, respondent-plaintiff sought to substitute paragraph 10 of the plaint by the following narration:

"That Shri Bagga Singh executed a registered will dated 22.8.58 registered with the Sub-Registrar, Ludhiana on 23.5.58 in his life time while in sound disposing mind and bequeathed all the properties moveable and immovable in favour of the plaintiff and defendant No.l in equal share. Both of them have inherited to the estate of Shri Bagga Singh in equal share through testate succession. The plaintiff and defendant No.l are in joint possession of all the estate of Bagga Singh. The wills mentioned and relied upon by the defendants are nothing but forged and fictitious documents and are not the result of free volition."

The aforesaid amendment specially the assertion made therein that "....The wills mentioned and relied upon by the defendants are nothing but forged and fictitious documents and not the result of free volition..." (which constituted the last three lines in the proposed amendment), were vehemently opposed by the defendants. By an order dated 1.6.1981, the trial Court recorded the concession of the plaintiff to delete the said part of the amend\ment (extracted hereinabove, in verbatim) i.e. the part constituting the last three lines of the proposed amended paragraph 10. Accordingly, the trial court allowed the amendment, except the portion extracted hereinabove.

8. After the aforesaid amendment, additional issues were framed on 1.6.1981 and then again on 7.8.1981. Before the parties went to trial, the following issues were framed:-

"1. Whether the suit is bad for non-joinder of necessary parties?

1A. Whether Bagga Singh deceased executed a will dated 22.8.1958 registered on 23.6.1958 bequeathing all his movable and immovable properties in favour of the plaintiff as well as in favour of defendant No.l in equal shares and they as such are in joint possession of the properties in dispute? OPP
1B. Whether Bagga Singh, deceased was the exclusive owner of the property (b) and the other house in Jawaddi and he bequeathed the same vide a will dated 25.10.1971 and codicil dated 19.6.1976 in favour of defendants No. 5,6,9, to 12? If so, its effect? OPD
1C. Whether property (f) situated at Industrial Area was partitioned orally by the plaintiff and defendant No.l and they are in possession of there respective shares? OPD No.l.

1B. Whether the property (a) which was gifted away by Bagga Singh to the sons of defendants, defendant No. 1 vide few registered gift deeds as alleged in para No. 3 of the preliminary objection? OPD
1D. Whether the property (a) which gifted away by the Bagga Singh to the sons of defendants, defendant No. 1 vide few registered gift deeds as alleged in para No. 3 of the preliminary objections? OPD
1E. Whether the property at (d) was purchased by Smt. Bhagwanti, wife of the plaintiff vide sale-deed dated 22.11.1960 and the property (e) was purchased by defendant Rajinder Kaur wife of Phuman Singh and defendant No.l vide sale deed dated 19.11.1960? If so, their effect? OPD

2. Whether the property in dispute is Joint Hindu Family property of the plaintiff and defendant No.l, and defendant No.l is Karta of the family? OPP

3. Whether the suit for rendition of accounts is not maintainable? OPD

4. Whether Bagga Singh executed a will dated 25.10.1971 bequeathing his property in favour of sons of Prem Singh and Harbhajan Kaur widow of Prem Singh, if so, its effect? OPD

5. Relief."

As noticed above, Issue No. 2 related to the assertion made by Kartar Singh, respondent-plaintiff that the property in dispute was Joint Hindu Family property, and that Phuman Singh defendant No.l was Karta thereof, after the demise of Bagga Singh. Onus to prove the aforesaid issue was placed on the respondent-plaintiff Kartar Singh. Learned counsel representing Kartar Singh before the trial Court, made a statement con- ceding the aforesaid issue. The said issue was, therefore, disposed of as not pressed by the plaintiff. In other words, it came to be conceded that the suit property did not constitute the Joint Hindu Family property of Bagga Singh, Kartar Singh and Phuman Singh. Issue No.lC and ID were likewise conceded in favour of the defendants. It is not necessary to record any details in respect thereof, since they would be irrelevant for the pur- pose of the disposal of the present appeal.

9. The surviving claim of the respondent-plaintiff Kartar Singh is primarily based on the execution of the first will by Bagga Singh on 22.8.1958. The issue of validity of the will dated 22.8.1958 would arise for consideration, only if the second will dated 25.10.1971 is held to be not duly executed, or is otherwise determined to be forged/fabricated or invalid in law. It is, therefore, operative to consider, in the first instance, the validity of the second will dated 25.10.1971 and the codicil dated 19.6.1976. While adjudicating upon validity of the will and codicil, aforesaid, the trial Court by its judgment dated 30.5.1983, arrived at the conclusion that the same were shrouded in suspicious circumstances and, therefore, were not enforceable in law.

10. In order to advance his contentions, learned counsel for the appellants-defendants first of all, placed reliance on the order of the trial Court dated 1.6.1981, whereby, while allowing an application filed by the respondent-plaintiff Kartar Singh, under Order VI Rule 17 of the Code of Civil Procedure, it had expressly excluded the assertion made in the proposed amendment to the effect that, the will and codicil mentioned and relied upon by the defendants were nothing but forged, fabricated and fictitious documents and not the outcome of the free will of the testator Bagga Singh. An inference was sought to be drawn by the learned counsel for the appellants-defendants, on the basis of the aforesaid order, to the effect, in foregoing the part of the amendment whereby he had questioned the validity of the second will dated 25.10.1971 and the subsequent codicil dated 19.6.1976, the plaintiff Kartar Singh acknowledged and conceded, the genuineness and validity of the second will dated 25.10.1971 as well as the codicil dated 19.6.1976. In conjunction with the aforesaid submission (based on the order of the trial Court dated 1.6.1981), learned counsel for the appellants-defendans also emphatically pointed out, that the respondent-plaintiff Kartar Singh had chosen not to file any replication to the averments made in paragraph 10 of the written statement wherein, the appellants-defendants No. 2 to 10 had placed reliance on the second will dated 25.10.1971 and the codicil dated 19.6.1976, to substantiate their claim to the property of Bagga Singh. The contention of the learned counsel for the appellants-defendants, in this behalf is, that by such omission, the respondent-plaintiff Kartar Singh conceded the validity of the will dated 25.10.1971 as well as the codicil dated 19.6.1976.

11. I have examined the aforesaid plea of the learned counsel for the appellants-defendants but find no merit therein. The issues, as they were finally drawn by the trial Court, placed the onus of establishing the validity of the will dated 25.10.1971 and the codicil dated 19.6.1976 on the defendants (see Issues No.lB and 4 above). That being so, it is clear that the parties had gone to trial with the clear understanding that the respondent-plaintiff would establish his claim on the basis of the first will dated 22.8.1958, and in order to defeat the aforesaid claim, the appellants-defendants would establish the validity of the second will dated 25.10.1971 and the codicil dated 19.6.1976. Evidence was also produced in this manner, by the respective parties before the trial Court. Additionally, having based his claim of the first will dated 22.8.1958, despite the acknowledgement of the subsequent will dated 25.10.1971, it is clear that the respondent-plaintiff Kartar Singh did not concede his claim to the appellants-defendants on the basis of the will dated 25.10.1971 and the codicil dated 19.6.1976. Therefore, so as to defeat the claim of the respondent-plaintiff Kartar Singh, it was imperative for the appellants-defendants, to establish the validity and the legality of the will dated 25.10.1971 and the codicil dated 19.6.1976. It is, therefore, not possible to accept the first contention of the learned counsel for the appellants-defendants.

12. Learned counsel for the appellant-defendants then took upon himself; the onus to establish, due execution of the will dated 25.10.1971, as well as the codicil dated 19.6.1976; and further to rebut the conclusion drawn by the trial Court that the aforesaid documents were shrouded in suspicious circumstances.

13. In order to prove due execution of the will dated 25.10.1971, learned counsel for the appellants-defendants has primarily placed reliance on the statement of Parvesh Chander Kohli DW4 i.e. one of the marginal witnesses and the statement of Shanti Devi DW3, i.e. the widow of Dr. P.L.Kapila the other marginal witness. It would be pertinent to mention that Dr. P.L.Kapila, aforesaid, had died before the appellants-defendants were called upon to lead their evidence. Shanti Devi DW3 identified the signatures of Dr. P.D.Kapila on the will dated 25.10.1971 and Parvesh Chander Kohli DW4 identified his signatures on the same. The statement of DW4 has been read out in ex tenso during the course of arguments. In fact, both the parties placed reliance on the same. In his statement, Paresh Chander Kohli asserted that he has seen the testator Bagga Singh executing the will. He also confirmed the fact that Dr. P.L.Kapila had signed the will in his presence. His statement also narrates that he himself, Dr. P.L.Kapila and Bagga Singh, had signed in the presence of one another.

14. Learned counsel for the respondent-plaintiff Kartar Singh vehemently contested the due execution of the will by asserting that the contents of the will had not been read out and explained to the testator specially in view of the fact that the testator was admittedly an illiterate person, and further that the mere fact that Bagga Singh had thumb marked the will dated 25.10.1971 would not ipso facto establish due execution thereof. In order to controvert the aforesaid assertion, learned counsel for the appellants-defendants has invited the Court's attention to the following observations made by Parvesh Chander Kohli DW4 during the course of his deposition:-

"The will was presented by Bagga Singh before Mathura Das for attestation. Mathura Dass told him that he had already read and explained the will to Bagga Singh in the presence of Dr. P.L.Kapila."

There is no cross-examination challenging the aforesaid assertion of Parvesh Chander Kohli, even a suggestion was not put to him on the aforesaid factual aspect at the behest of the respondent-plaintiff, during his cross-examination. It is, therefore, natural to infer that the aforesaid assertion in the statement to Parvesh Chander Kohli, DW4 was not contested by the respondent-plaintiff Kartar Singh. Thus viewed, it is clear that the essential ingredients in the execution of the wills delineated in Section 63 of the Indian Succession Act, 1925 stood duly established.

15. Before validity can be bestowed on the will dated 25.10.1971, it is also imperative to arrive at the conclusion that the testator Bagga Singh, who at that stage was over 90 years old, was in a sound disposing mind. Learned counsel for the respondent-plaintiff Kartar Singh has vehemently contended that Bagga Singh i.e., the testator, was not in a sound disposing mind to be able to execute his will on 25.10.1971 and further that he was in extreme ill-health on 19.6.1976 at the time of execution of the codicil. The aforesaid contention of the learned counsel for the respondent-plaintiff is primarily based on the following inferences:-

Firstly, the fact that the codicil dated 19.6.1976 was executed by the testator Bagga Singh at his residence was sufficient to establish that he was unfit to go to the office of notary on that date. Reliance has been placed on the statement of Jaswinder Singh DW2, who acknowledged that on the date of execution of the codicil, the testator Bagga Singh was unwell as he was suffering from enlarged prostrate glands. So as to enable him to pass urine a catheter had been inserted, making him immobile. Reliance has also been placed on the statement of Parvesh Chander Kohli DW4 wherein he asserted that Jaswinder Singh had helped the testator Bagga Singh to affix his thumb impressions on the codicil, and thereby to infer, that Bagga Singh, at his own, was not even in a fit state of health to affix his thumb impressions on the documents executed on 19.6.1976. He has also highlighted the deposition of Parvesh Chander Kohli DW4 wherein he stated that the testator Bagga Singh had not spoken to any one at the time of execution of the codicil on 19.6.1976. On the basis of the facts noticed above, it is sought to be projected that the testator Bagga Singh was not in a sound state of mind to execute the codicil dated 19.6.1976.

16. In order to rebut the aforesaid contention, learned counsel for the appellants-defendants has placed reliance on the statement of Dr. K.P.Singh, DW7, who asserted that he was holding the post of Professor of Surgery at the Dayanand Medical College and Hospital, Ludhiana. He affirms that he knew Bagga Singh, and further that Bagga Singh was under the treatment till his death. He asserted that he had been treating Bagga Singh for about 5/6 years prior to his death. According to Dr. K.P.Singh, DW7, Bagga Singh was capable of understanding everything. On the basis of the statement of Dr. K.P.Singh. DW7, learned counsel of the appellants-defendants vehemently contends that the testator was in a sound disposing mind. A perusal of the statement of Dr. K.P.Singh as well as the cross-examination, to which he was subjected reveals that express or implied suggestion was put to the aforesaid witness that he had deposed falsely in respect of the mental health of the testator Bagga Singh. In the absence of any evidence to controvert the statement made by Dr. K.P.Singh, DW7, there can be no justification in re- cording an adverse finding about the mental state of the testator, Bagga Singh. The reason of execution of the codicil dated 19.6.1976, by the testator from his residence was not because he was mentally unfit to execute it, but because he was physically incapacitated to move out of his residence, due to enlarged prostrates glands, for which a catheter had also been inserted for easy passage of urine. Likewise, help rendered by Jaswinder Singh to the testator Bagga Singh, in order to thumb mark the codicil, was obviously on account of the fact that Bagga Singh was illiterate and had to be helped in affixing his thumb impression at the appropriate place, and not because he was mentally unfit to do so. In the aforesaid view of the matter, it is natural to conclude that Bagga Singh was in a sound disposing mind when he executed the second will dated 25.10.1971 and the subsequent codicil dated 19.6.1976.

17. In so far as the due execution the codicil dated 19.6.1976 is concerned, it would be pertinent to mention that the marginal witnesses thereon were Parvesh Chander Kohli and Gurdial Singh. The marginal witnesses were produced by the appellant-defendants as DW4 and DW5. The marginal witnesses, according to their testimony, were neither favourably nor unfavourably deposed towards the rival parties. For all intents and purposes they must be accepted as independent witnesses. Gurdial Singh DW4 in his statement affirmed that the codicil dated 19.6.1976 had been read out to the testator Bagga Singh by Mathura Dass. Both Parvesh Chander Kohli and Gurdial Singh authenticated the fact that they were marginal witnesses to the said codicil. Parvesh Chander Kohli DW4 also narrated the fact that the testator Bagga Singh had consulted him after the death of the beneficiaries of the will dated 25.10.1971 and that the codicil dated 19.6.1976 was the outcome of the suggestions made by him to the testator Bagga Singh on the death of Prem Singh. D4 further deposed that the codicil was scribed by Bishan Das, petition writer, at the instance of Bagga Singh. The thumb impression of Bagga Singh on the codicil have also been established. In fact there was hardly any dispute at the hands of the learned counsel for the respondent-plaintiff insofar as the due execution of the codietl dated 19.6.1976 is concerned, except to the soundness of the mind of the testator at the time of execution of the same, and the suspicious circumstances in which it was shrouded. Insofar as the soundness of mind of the testator Bagga Singh at the time of execution of the codicil dated 19.6.1976 is concerned, the same has been dealt with in the foregoing paragraphs wherein a conclusion favouring due execution of the codici has been drawn. In so far as suspicious circumstances are concerned, the same are being dealt with hereinafter. Subject to the conclusion on suspicious circumstances the codicil dated 19.6.1976 must be deemed to have been duly executed

18. Suspicious circumstances in the episode prompted the trial Court to arrive at the conclusion that the will and codicil were not legally enforceable. The trial Court has relied on the following factual instances in order to cumulatively arrive at the conclusion that the will was shrouded in suspicious circumstances:-

Firstly, it is stated that Bagga Singh was not present in Court on 19.6.1976 when the codicil was executed on account of his ill-health. In connection with the codicil, it is also concluded that there was no material evidence to establish at whose instance it was scribed.

Secondly, that Bagga Singh was not of a sound disposing mind.

Thirdly, one of the propounders of the will, namely, Jaswinder Singh had taken active part in the execution of the codicil and another beneficiary Phuman Singh had remained present at the time of the execution of the will dated 25.10.1971 as well as the codicil dated 19.6.1976.

Fourthly, the trial Court had relied upon the contradiction in the statement of Jaswinder Singh and thereafter, concluded that there was no justification in view of the aforesaid suspicious circumstances to give effect to the will and the codicil.

Fifthly, Parvesh Chander Kohli DW4 has not been able to assert wherefrom Bagga Singh, testator had got typed the will dated 25.10.1971 as well as the codicil dated 19.6.1976.

Lastly, again relying on the statement of Parvesh Chander Kohli DW4, the trial Court has observed that the will was read over to the testator Bagga Singh by Mathura Dass in his absence, it is, therefore, sought to be concluded that there is no direct evidence about the factum of the will being read over and explained to the testator.

The aforesaid suspicious circumstances were justified by learned counsel for the respon- dent-plaintiff, from the judgment of the trial Court. During the course of arguments before this Court, learned counsel for the respondent-plaintiff has added to the list of suspicious circumstances. The additional suspicious circumstances brought to the notice of the Court by the learned counsel representing the respondent-plaintiff, are summarised hereunder:-

Firstly, it is pointed out that Bagga Singh deprived both his male offsprings, namely, Phuman Singh as well as Kartar Singh from the benefits of his estate in his will dated 25.10.1971. Whereas in his earlier will dated 22.8.1958 they were the sole beneficiaries of his estate. Additionally, it is pointed out that Phuman Singh had been duly compensated as his children (and their legal heirs) are the sole beneficiaries of the will dated 25.10.1971; whereas, the grandsons of Bagga Singh through Kartar Singh, though similarly situated have been deprived of the estate of Bagga Singh.

Secondly, it is pointed out that Phuman Singh had filed a civil suit in 1976 against the testator Bagga Singh and the plaintiff Kartar Singh, wherein Phuman Singh claimed l/3rd of the property of Bagga Singh. In the aforesaid circumstances, it is contended, that equal animosity should have extended against Phuman Singh and his offsprings as well. According to the learned counsel for the respondent-plaintiff, the testator's action in transferring the entire property to the children of Phuman Singh is logically unacceptable.

Thirdly, it is contended that there were five thumb impressions on the will dated 25,10.1971, out of which, three were on the last page, whereas, Parvesh Chander Kohli DW4 had categorically deposed that the testator Bagga Singh had affixed only one thumb impression on the said will.

Fourthly, it is contended that despite various litigations in respect of the property/estate of Bagga Singh, the appellant-defendants did not seek a probate in respect of will dated 25.10.1971 or/and codicil dated 19.6.1976, therefore, clearly leading of the inference that the will could not stand the scrutiny of law.

19. Despite having arrived at the conclusion that the will has been duly executed in terms of the prescribed norms, a Court may still decline to give effect to the same, if it is convinced that the same is shrouded in suspicious circumstances, so as to conclude, that the testator is unlikely to have executed it. The determination of validity of a will arises for consideration before a Court only after the death of the testator, and therefore, the author of the will is not available for affirming its genuineness. Extreme care should be taken before a conclusion is drawn, because the issue being adjudicated upon will determine, whether or not the testament is indeed the desire expressed by the deceased. If it is a genuine desire, the same must be implemented. If however, the testament is not genuine, giving effect to the same would be an endorsement of deceit committed against a dead person. Therefore, proof of due execution of the will in terms of the statutory provisions, and proof of sound disposing mind of the testator, in most cases are sufficient to determine the genuineness of a will. In cases where a will is shrouded in suspicious circumstances, it is equally essential for the propounder of the will to dispel the same, before a Court can agree with him to give effect to the same what circumstances would be rendered as suspicious, cannot be precisely defined or exhaustively enumerated. Each case will have to be determined on its own facts and circumstances. In Smt. Jaswant Kaur v. Smt. Amrit Kaur etc. 1977 C.L.J. 237, the Apex Court reiterated six propositions of law in respect of proof of a will. The observations made by the Supreme Court in the aforesaid judgment, wherein it reiterated the legal position determined in an earlier case, are being extracted hereunder:-

"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court and in R. Venkatachala Iyengar v. B.N. Thimmaiamma and Ors., 1959 Supp. 1 S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions:-

1. Stated generally, a will has to be proved like any other document, the test to be- applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof wills, one cannot insist on proof with mathematical certainly.

2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the prapounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4. Cases in which the execution of the will is shrouded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicious before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And when it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." As noticed above, an important distinguishing feature between a will and other documents, is that unlike other documents, a will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator has already departed the world. The testator is not available to affirm whether or not it is his will and this aspect naturally introduces an element of solemnity in the decision as to whether the document propounded is the last will and testament of the departed testator. Therefore, the requirement of extreme caution before recording a finding one way or the other, is essential."

20. While dealing with the suspicious circumstances, insofar as the present controversy is concerned, the endeavour in the first instance would be, to deal with the suspicious circumstances pointed out to this Court for the first time by the learned counsel for the respondent-plaintiff.

21. The first contention of the learned counsel for the respondent-plaintiff is that through the will dated 25.10.1971 and the codicil dated 19.6.1976, the testator Bagga Singh ignored both his sons, namely, Kartar Singh and Phuman Singh. In continuation of the aforesaid submission, it is pointed out that the testator deposed only in favour of the children of Phuman Singh (the younger of the two sons of the deceased Bagga Singh). In other words, he ignored his eldest male offspring i.e. Kartar Singh, the respondent-plaintiff, as well as his grand-children through Kartar Singh. The allegation levelled is obviously serious. Unless the same is duly explained, it can by itself be sufficient to arrive at the conclusion that the will dated 25.10.1971 could not have been the voluntary desire of the testator. In order to controvert the aforesaid submission, learned counsel for the appellant-defendants has invited the attention of this Court to the state- ment of Mohinder Singh PW1. Mohinder Singh is the son of the respondent-plaintiff Kartar Singh. He was examined on behalf of the respondent-plaintiff as his general attorney. PW1 in his deposition affirmed that the partnership firms Bagga Singh Kartar Singh and Bagga Singh and Sons were dissolved in the year 1966 and further that the business of Kartar Singh was separated from Baggar Singh in the year 1966. The aforesaid position was further clarified by asserting that Bagga Singh was a partner in the firm Bagga Singh Kartar Singh, but he did not remain a partner of the said firm after 22.5.1966. It is also asserted by Mohinder Singh, PW1 that Kartar Singh and his chil- dren started a separate mess from the year 1967-68. The aforesaid statement of Mohin- der Singh on the factual aspect noticed above, was confirmed by the statement of Phu- man Singh DW1. Phuman Singh appellant-defendant No.l during the course of his ex- amination-in-chief asserted, that in the year 1926, after the death of his mother, Kartar Singh separated his mess from Bagga Singh, the testator. After the aforesaid separation, Kartar Singh lived with his own family, whereas Bagga Singh, Phuman Singh and Pritam Kaur (daughter of Bagga Singh) lived together. Before the marriage of Phuman Singh in 1939, Pritam Kaur, his sister cooked their meals, whereas, after the marriage of Phuman Singh his wife used to cook their meals. He further explained that his wife and children used to look after Bagga Singh i.e. the testator and used to serve him. Even the last rites of Bagga Singh were performed by the sons of Phuman Singh. To a suggestion put to DW1 Phuman Singh during the course of his cross-examination, he asserted that it was incorrect to suggest that the mess of the plaintiff Kartar Singh, the testator Bagga Singh and the appellant-defendant No.l Phuman Singh remained joint uptill 1966. By the aforesaid suggestion itself, it clearly stands established that the respondent-plaintiff Kartar Singh did not dispute the factual position, about separating ways from Bagga Singh and the rest of the family in business, mess and residence after 1966. The deliberation at the hands of Bagga Singh, in view of the aforesaid explanation, fall completely in place. His first will was executed on 22.8.1958 wherein his two sons Kartar Singh and Phuman Singh were the sole beneficiaries in equal shares. The second will was executed on 25.10.1971, by which time Kartar Singh had parted ways with Baga Singh, inasmuch as, Kartar Singh alongwith his family started to live separately from Bagga Singh. Bagga Singh, however, continued to live with Phuman Singh and his family, and therefore Kartar Singh and his family came to be excluded from the estate of Bagga Singh. Learned counsel for the appellants-defendants, however highlighted the fact, that even Phuman Singh was deprived of a share in the property of Bagga Singh, under the will dated 25.10.1971, which signifies that Bagga Singh was not happy even with Phuman Singh. The instant assertion of the learned counsel for the appellants-de- fendants is hardly of any substance on account of the fact that the sole beneficiaries are the children of Phuman Singh, and therefore, Phuman Singh must be deemed to have been fully compensated. There is also another explanation why Phuman Singh may have been deprived of any share in the estate of Bagga Singh, and that is, that Phuman Singh had also filed a civil suit against his father Bagga Singh, although the same was sub- sequently withdrawn. Viewed in the background of the facts highlighted by learned counsel for the appellants-defendants, I find no substance in the first contention of the learned counsel for the respondent-plaintiff. Moreover, if deprivation of natural heirs is accepted as a suspicious circumstance, all wills will have to be set aside, because the whole idea behind the execution of will is to interfere with the natural line of succes- sion. Dealing with the allegation that the testator had deprived the natural heirs in his will, the Supreme Court in Rabindra Nath Mukherjee v. Panchnan Banerjee,2 A.I.R. 1996 S.C. 1684, observed as under:-

"As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will.

Applying the aforesaid rule, since Bagga Singh through his will and codicil chose only some of his legal heirs to the exclusion of others, for the benefit of his estate after his demise, the same cannot be accepted as a sufficient basis for ignoring the will specially because, as noticed above, there were sufficient and valid reasons for the same.

22. The second submission of the learned counsel for the respondent-plaintiff in order to highlight suspicious circumstances is, the fact that Phuman Singh had filed a civil suit against the testator in 1976 and, therefore, Phuman Singh as well as his children should have beer, disinherited in the same manner as Kartar Singh i.e. respondent-plaintiff was disinherited on account of parting ways with Bagga Singh in 1966. The discussion in respect r"f first contention noticed in the foregoing paragraph sufficiently rebuts the second suspicious circumstance as well. For the same reasons as have been recorded in the foregoing paragraphs, i find no substance in the instant plea of the learned counsel for the respondent-plaintiff.

23. The third contention of the learned counsel for the respondent-plaintiff is that a perusal of the will dated 25.10.1971 depicts that there were five thumb impressions on the same, out of which, three were on its last page, whereas Parvesh Chander Kohli DW4, one of the marginal witnesses, had expressly indicated that Bagga Singh had affixed only one thumb impression on the said will dated 25.10.1971. The aforesaid contention deserves to be rejected at the outset on the ground that it is based on an incorrect reading of the statement of Parvesh Chander Kohli DW-4. It would be pertinent to mention that Parvesh Chander Kohli, DW4 in his statement asserted that the testator Bagga Singh had "ffixed one thumb impression on the will dated 25.10.1971 "in his presence". His deposition was not in respect of the total number of thumb impressions on the will dated 25.10.1971. It is, therefore, clear that the very basis of the instant contention of the learned counsel for the respondent-plaintiff is misconceived. It would, however, be pertinent to mention that there is sufficient explanation in respect of the presence of a number of thumb impression of the testator Bagga Singh on the will dated 25.10.1971 in the statement of witnesses produced by the appellants-defendants for establishing due execution of the documents under reference. The explanation tendered is that additional thumb impression had to be affixed because the earlier thumb marks were smudged. This indeed is the position on a visual examination of the will dated 25.10.1971. In view of the above, there is no merit in this submission as well.

24. The next contention of the learned counsel for the respondent-plaintiff is that the parties to the suit were engaged in a number of litigations, and despite the same, the appellantefendants did not seem a probate in respect of the will dated 25.10.1971 or the codicil dated 19.6.1976, leading to the inference that the will and codicil were never actually executed by Bagga Singh, but were forged and fabricated at the hands of the appellants-defendants. The aforesaid contention of the learned counsel for the respondent plaintiff is again misconceived. The averments made in the suit filed by the respondent plaintiff reveal that the entire property of Bagga Singh was in the hands of the appellants-defendants. They were also enjoying rental income therefrom. In other words, the deposition made by Bagga Singh through the will dated 25.10.1971 and the codicil dated 19.6.1976 already stood implemented. There was, therefore, no necessity in seeking a probate as is sought to be suggested by the learned counsel for the respondent- plaintiff. In view of the above, I find no merit in the instant contention as well.

25. Having dealt with the suspicious circumstances pointed out during the course of arguments or the instant appeal it now becomes necessary to deal with the suspicious circumstances taken into consideration by the trial Court (as identified by the learned counsel for the respondent-plaintiff) while decreeing the suit of the respondent-plaintiff.

26. Firstly, the trial Court had taken into consideration the fact that Bagga Singh was not present in Court on 19.6.1976 (when the codicil was executed), and the fact that there was no material to establish at whose instance the codicil was scribed. Insofar as the factum of the presence of Bagga Singh,' at the time of presentation of the codicil dated 19.6.1976 is concerned, it is clear from the statement of Dr. K.P.Singh DW-7 as well as the statement of Jaswinder Singh DW-2, that on the date of execution of the codicil, the testator Bagga Singh was suffering from enlarged prostrate glands. So as to enable him to pass urine freely, a catheter had been inserted, making it difficult for him to move about. It is for the aforesaid reason that Bagga Singh did not go to the office of the notary for the execution of the codicil. The aforesaid factual position has not been rebutted That being so, the absence of the testator Bagga Singh from the office of the notary, stands fully explained. Insofar as the other contention is concerned, namely, the absence of material to establish at whose instance the codicil was scribed, reference may be made to the statement of Parvesh Chander Kohli DW-4, whom Bagga Singh consulted (after the death of his grandson, Prem Singh, who was a beneficiary under the will dated 25.10.1071). On the death of Prem Singh, Parvesh Chander Kohli on being consulted by Bagga Singh claims to have advised him at the Bhog ceremony of Prem Singh, to get the will "amended". The aforesaid Parvesh Chander Kohli also stated in his examination-in-chief that the codicil was scribed by Bishan Das, petition writer at the instance of Bagga Singh. In view of the above, it is clear that the instant basis for suspicion identified by the trial Court was unjustified.

27. The trial Court also recorded a finding that Bagga Singh was not in sound disposing mind at the time of the execution of the testamentary documents referred to above. Insofar as the instant factual controversy is concerned, while deliberating on the issue of due execution of the will dated 25.10.1971, a finding has already been recorded hereinabove, to the effect that Bagga Singh was in a sound disposing mind at the time of the execution of the will and the codicil dated 25.10.1971 and 19.6.1976, respectively. For the reasons already recorded above, it is not possible for his Court to accept that Bagga Singh was not in a sound disposing mind at the time of execution of the aforesaid documents.

28. It is also the vehement contention of the respondent-plaintiff, on the basis of the conclusion recorded by the trial Court, that one of the propounders of the will dated 25.10.1971, namely, Jaswinder Singh son of Phuman Singh had taken an active part in the execution of the codicil dated 19.6.1976. He must, therefore, be deemed to have influenced the free execution of the will of Bagga Singh at the time of the aforesaid testamentary deposition. It is also the case of the respondent-plaintiff that the presence of Phuman Singh at the time of execution of the will dated 25.10.1971 as well as the codicil dated 19.6.1976, is sufficient to establish that he exercised undue influence over Bagga Singh, so as to compel him to make a deposition in favour of his children. Insofar as the first contention is concerned, the participation of Jaswinder Singh has only been indicated during the execution of the codicil dated 19.6.1976. It would be pertinent to mention that the aforesaid Jaswinder Singh was not a beneficiary under the aforesaid codicil. Suffice it to notice, that through the codicil dated 19.6.1976, Bagga Singh deposed in favour of the legal heirs of Prem Singh, whatever he had earlier deposed in favour of Prem Singh through his will dated 25.10.1971. In sum and substance, therefore, no real alteration was made to the intention expressed by Bagga Singh (in his will dated 25.10.1971) in so far as the disposal of his estate is concerned, by the execution of the codicil dated 19.6.1976. On account of the death of one of the beneficiaries of the aforesaid will, namely, Prem Singh (after the execution of the will dated 25.10.1971) Bagga Singh merely clarified that the property which was to devolve to Prem Singh under the will dated 25.10.1971, would devolve to the legal heirs of Prem Singh. Thus viewed, the participation of Jaswinder Singh in the execution of the codicil cannot constitute a suspicious circumstance. The second contention, namely, the undisputed presence of Phuman Singh at the time of execution of the will dated 25.10.1971, as well as the codicil dated 19.6.1976 would absolutely vitiate the execution of the said documents. There is no dispute about the fact that Phuman Singh is neither a beneficiary under the will dated 25.10.1971, nor under the codicil dated 19.6.1976. Thus viewed, his presence at the aforesaid two junctures is wholly immaterial. The pointed contention of the respondentplaintiff, however, is that Phuman Singh influenced Bagga Singh to transfer the property to his descendants. This contention also is not of much significance, if the totality of the factual position is kept in mind. At the time of the execution of the will and the codicil, the testator Bagga Singh was around 90 years old. It is-natural for his son to accompany him, at such an advanced age, specially keeping in mind the seriousness of the task in hand, and the fact that the testator was an illiterate person. The relationship of the testa for Bagga Singh with Phuman Singh as well as Kartar Singh have already been dealt with while dealing with the one of the suspicious circumstances hereinabove. The reason for choosing the children of Phuman Singh as his beneficiaries and ignoring Kartar Singh, is, therefore, natural in the facts and circumstances of the present case, addition- ally, it would be pertinent to wlion that two totally independent marginal witnesses Here associated at the time of execution of the will as well as, at the time of execution of the codicil. The marginal witness have not been shown to be under any influence of Phuman Singh. The marginal witnesses were also not questioned on the issue whether Phuman Singh had influenced Bagga Singh while executing the will or codicil. It is, therefore, clear that no doubt can be cast on the execution of the will dated 25.10.1971 and the codicil dated 19.6.1976 merely on account of the presence of Phuman Singh at the time of the execution of the said documents.

29. The trial Court also relied on the contradiction in the statement of Jaswinder Singh so to conclude that the will was shrouded in suspicious circumstances. It would be pertinent to notice that the will under reference was executed on 25.10.1971 and the codicil was executed on 19.6.1976, whereas, the deposition of Jaswinder Singh DW-2 was recorded by the trial Court on 19.i 1.1992. In a similar situation, a Division Bench of the Orissa High Court in N.D. Samant v. Kumari Jayashree Roy3 1989 C.C.C. 277, observed as unden
"Mr. B.L.N. Swamy, learned counsel for the appellants submitted that the witnesses are so discrepant in their vision that genuiness of the Will cannot be accepted. It is true that the witnesses have not spoken parrot-like. It is not uncommon that witnesses at times, exaggerate or suppress so as to be acceptable to every one. At times they speak in a manner a fact has been imprinted in their minds. It is to be remembered that they speak of a fact long after it happened. With much happenings in their day to day life, the overlaping of facts in the mental faculty to give rise to confusion is not uncommon. Court is to read the evidence as a whole and get an impression of the correctness of the facts stated by a witness."

With the passage of time, the factual position gets blurt. However, the contradiction in the statement of Jaswinder Singh is hardly of any significance in view of the over-whelming evidence, depicting the due execution of the will and the codicil. Merely on account of a trivial contradiction, the statements of independent attesting witnesses and others, who have retreated due execution of the will cannot be over-looked. This Court had the occasion to examine a situation wherein one of the attesting witnesses had turned hostile in Gurdev Singh and Ors. v. Smt. Shanti, 1989 C.C.C. 40, and yet it arrived at the conclusion that merely because an attesting witness or some of them were hostile or unreliable, the Court would not declare a will invalid if on the examination of the totality of the circumstances, a contrary conclusion could be arrived at. Relevant observations made in the aforesaid judgment are being extracted hereunder:-

"In order to establish the validity of a will, it has no doubt to be proved that it was attested by at least two witnesses, but it must, at the same time also be observed that it is not the intention of the law that an attesting witness be permitted to hold the propounder of a will to ransom, as it were by treating his mere denial of attestation of the will, by itself, as negation of due execution of the will. As held by the High Court of Calcutta in Mahindra Nath Ganouli v. Durga Charan Ganauli, 1959 I.L.R.(l) Calcutta 471, where the attesting witnesses or some of them prove hostile or unreliable, the Probate Court is not powerless to declare in favour of the will and if from the other evidence on record and the circumstances taken as a whole, it is in a position to hold that the will was duly executed and attested, it will pronounce in favour of its validity.

Turning now to the testimony of Bakhtawar Singh it will be seen that he admits both his signatures on the will exhibit D/l (on the front and reverse) as also on the register of the scribe Rattan Pal too. The explanation put-forth by him to account for his signatures on the will cannot stand scrutiny, inasmuch as he deposed that he had affixed his signatures there believing the document to be a power to attorney in favour of Amar Singh. The record shows that Punjab Kaur did indeed execute a power of attorney in favour of her brother-in-law Amar Singh, but this was not done on the day the will was executed, but above three months thereafter. The lower appellate court has clearly mis-read the evidence on this point in observing that both the will and the power of attorney were executed on the same day. The fact, therefore, that the power of attorney was executed several months after the will, cannot but give a wholly different complexion to the credibility of this witness.

Relevant in this context is also the evidence of the scribe Rattan Pal and Sub-Registrar Rajinder Singh. According to the scribe, the will was scribed by him not only in the presence of Punjab Kaur but also the two attesting witnesses thereof, namely; Bakhtawar Singh and Sukhdev Singh and they were there when he read over the explained the contents thereof to Punjab Kaur and further that they then both attested the will in his presence and also that of Punjab Kaur.

To a similar affect is the testimony of the Sub-Registrar Rajinder Singh who deposed that when the will was presented to him for registration, he read it over to Punjab Kaur in the presence of Bakhtawar Singh and Sukhdev Singh and that she affixed her thumb impression on the will in their presence."

Herein also, the statement of Jaswinder Singh DW2 in material particulars fully coincides with the statement of all other witnesses produced to demonstrate the due execution of the will dated 25.10.1971. In view of the above, the alleged contradiction in the statement of Jaswinder Singh when examined in the totality of the circumstances of the case is too trivial to upset the deposition made by the testator Bagga Singh.

30. One of the salient feature taken into consideration, to arrive at the conclusion that the will dated 25.10.1971 as well as the codicil dated 19.6.1976 were shrouded in suspicious circumstances is the fact, that the marginal witnesses Parvesh Chander Kohli has not been able to assert from where Bagga Singh, the testator had got the codicil typed. Even if the factual position noticed above is taken as true, that can hardly be a basis for the annulment of a testamentary disposition as a suspicious circumstance. The evidence produced by the appellants-defendants discloses the scribe of the documents. Two independent marginal witnesses were associated in the execution thereof. One marginal witness, namely, Parvesh Chander Kohli affirmed having witnessed the execution of both the documents. The signatures of the other marginal witness Dr. P.L.Kapila were identified by his widow Shanti Devi, who was produced as DW3. The will having been executed in the presence of the two independent marginal witnesses and having been not arised on 26.10.1971 by a public functionary, cannot be annulled merely on account of the fact that the person who typed the will as well as the codicil have not been sufficiently identified, or because the scribes to the said documents were not examined as witnesses.

31. The only undealtwith suspicious circumstance taken into consideration by the trial Court, was based on the deposition of Parvesh Chander Kohli DW4, that the will was read over to the testator Bagga Singh by Mathura Dass in his absence. The aforesaid allegation loses all significance if one takes into consideration the fact that by the execution of the codicil dated 19.6.1976, the testator Bagga Singh not only clarified the beneficiaries of his testament dated 25.10.1971 (after the death of Prem Singh) but must be deemed to have reiterated the intention expressed by him in the will executed on 25.10.1971. The only important considerations that the testator must know the deposition that he has made, specially if the testator is an illiterate person. Besides the two independent marginal witnesses associated in the execution of the codicil dated 19.6.1976, Mathura Dass, who notarised the will on 26.10.1971 was also an independent witness associated therewith. According to Parvesh Chander Kohli DW-4, Mathura Das had explained the contents of the will dated 25.10.1971 to the testator Bagga Singh. The aforesaid factual position i.e. that Mathura Das had explained the contents of the will to Bagga Singh, was not contradicted during the course of cross-examination. The necessary perquisites, therefore, stood discharged with Mathura Dass narrating to Bagga Singh the contents of the will dated 25.10.1971.

32. In the foregoing paragraph, each one of the suspicious circumstances noticed by the trial Court and each one of the suspicious circumstances pointed out by the learned counsel for the respondent-plaintiff, have been deliberated upon. However, in each case, a conclusion has been recorded to the effect the same does not constitute a suspicious circumstance, so as to negate the will dated 25.10.1971 and/or the codicil dated 19.6.1976. All the aforesaid alleged suspicious circumstances, if taken together, would also not constitute a sufficient basis for the negation of the aforesaid will and the codicil.

33. For the reasons recorded above, it is not possible for me to accept the conclusion drawn by the trial Court in respect of the genuiness of the will dated 25.10.1971 or the codicil dated 19.6.1976. Accordingly, the instant appeal is allowed. The order of the trial Court dated 30.5.1983 is set aside. The will dated 25.10.1971 and the codicil dated 19.6.1976 are held to have been duly executed by the testator Bagga Singh and also not shrouded in any suspicious circumstances. Therefore, the suit filed by the respondent- plaintiff Kaitar Singh is held to be devoid of merit and is thus dismissed.